Maynard v The State of Western Australia - [2019] WASCA 189

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MAYNARD -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 189
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   2 SEPTEMBER 2019
DELIVERED          :   26 NOVEMBER 2019
FILE NO/S:   CACR 8 of 2019
BETWEEN:   PETER JOHN MAYNARD
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   DAVIS DCJ
File Number             :   IND 1930 of 2017

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of unlawfully doing grievous bodily harm - Doctrine of recent fabrication or invention - Prior consistent statement - Whether the trial judge erred in ruling that the complainant's prior consistent statement was admissible

Legislation:

Criminal Code (WA), s 297

Result:

Application for an extension of time within which to appeal dismissed
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Huron Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

GJ Coles & Co Ltd v McDonald [1998] 2 VR 218
'I' v The State of Western Australia [2006] WASCA 204; (2006) 165 A Crim R 420
Leeks v XY [2008] VSCA 21; (2008) 21 VR 118
Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476
R v Martin (No 2) (1997) 68 SASR 419
Transport and General Insurance Co Ltd v Edmondson [1961] HCA 86; (1961) 106 CLR 23
Wentworth v Rogers (No 10) (1987) 8 NSWLR 398

JUDGMENT OF THE COURT:

The appellant has applied for an extension of time within which to appeal and for leave to appeal against conviction.
The appellant was charged on indictment with one count which alleged, relevantly, that on 1 August 2016, at Balga, the appellant and Christopher Milordis unlawfully did grievous bodily harm to the complainant, Terry Ward, contrary to s 297 of the Criminal Code (WA).
On 20 August 2018, after a joint trial before Davis DCJ and a jury, the appellant and Mr Milordis were convicted as charged.
On 31 August 2018, the trial judge sentenced the appellant to 3 years 6 months' immediate imprisonment with eligibility for parole.
The last date for appealing was 21 September 2018. The appellant did not file his appeal notice until 18 January 2019. On 11 July 2019, Mazza JA referred the application for an extension of time within which to appeal to the hearing of the appeal.
The sole ground of appeal alleges that the trial judge erred when, over objection, her Honour allowed the State to adduce hearsay evidence, during re‑examination of the complainant, which unfairly bolstered his credibility. On 22 February 2019, Mazza JA referred the application for leave to appeal to the hearing of the appeal.
The sole ground of appeal does not have a reasonable prospect of success. An extension of time within which to appeal and leave to appeal should therefore be refused. The appeal must be dismissed.

Overview of the State's case at the trial

The State's case at the trial was, in summary, as follows.
The appellant and the complainant knew each other socially, but had not had any contact for some time. Shortly after receiving an invitation from the appellant at about 6.30 pm or 7.00 pm on 1 August 2016, the complainant attended the appellant's address and entered a shed used as a recreational area. The shed housed a boxing ring. The appellant, Mr Milordis and two other men were already in the shed. Those facts were undisputed at trial.
After being invited by the appellant to retrieve a drink from a refrigerator in the shed, the complainant was struck on the back of his head by an unidentified person. Mr Milordis dragged him into the boxing ring at the appellant's direction. The appellant accused the complainant of having stolen a go-kart from him.
The complainant was under the impression that the go-kart, being merely a frame, was discarded junk and he had given the go‑kart to a friend on that understanding. While the complainant was lying on the floor of the boxing ring, the appellant and Mr Milordis stood over the complainant as he attempted to telephone the friend to whom he had given the go-kart. These calls went unanswered.
The appellant and Mr Milordis then assaulted the complainant by striking his body with a baseball bat and a golf club and by punching him in the face. The complainant sustained multiple injuries, including a black eye and a punctured lung, caused by the fracturing of ribs on his left-hand side. He was also threatened with a machete before the appellant stopped the assault.
CCTV footage showed the complainant leaving the appellant's shed at 8.07 pm.[1] The complainant made his way home to his wife, who drove him to Sir Charles Gairdner Hospital. They arrived at about 9.15 pm.[2]
[1] ts 68.
[2] ts 287.
Police seized the baseball bat, the golf club, and the machete used in the assault during a search of the appellant's home the following morning.

Overview of the appellant's case at the trial

The appellant's case at the trial was, in summary, as follows.
When the complainant arrived at the appellant's shed, the appellant and Mr Milordis were sparring in the boxing ring. They stopped and had a drink with the complainant and the other men. After about half an hour, the now intoxicated complainant suggested that he enter the boxing ring and spar with the appellant. Encouraged by the others, the appellant and the complainant began sparring, during which the complainant sustained two blows to his face, causing minor injuries.
These two blows were the only physical contact the appellant had with the complainant. There was no serious assault. Following the session in the boxing ring, a humiliated but largely uninjured complainant left the appellant's property. At that time, he had no fractured ribs nor a punctured lung.
The baseball bat, the golf club, and the machete seized by the police were not used to assault or threaten the complainant.
The CCTV footage of the complainant leaving the appellant's property showed him moving freely, using his right arm to pull up the shed's door. It did not show him hunched over, as might be expected from someone with a punctured lung.
The complainant's injuries were, consistent with the accounts he gave to his treating doctors and the investigating police officers, the result of an assault by two unknown males as he travelled home through a park, intoxicated, from the appellant's property.[3]
[3] ts 142 - 145.
The complainant's injuries were, alternatively, the result of him stumbling home from the appellant's property in a state of intoxication, falling, and fracturing his ribs on contact with a hard object.[4]
[4] ts 145.

The cross-examination of the complainant

During cross-examination by the appellant's defence counsel, the complainant was unable to recall when he first mentioned to the police that he had been struck with the golf club. He rejected counsel's suggestion that he had mentioned it only a week before the trial.[5]
[5] ts 133 - 134.
The complainant agreed in cross‑examination that after he was admitted to hospital he was seen by medical staff including two doctors.[6]
[6] ts 134.
The appellant's defence counsel put to the complainant that he told the doctors that he was 'attacked or jumped from behind by two men in a park'.[7] The complainant said he did not remember 'saying that'.[8]
[7] ts 135.
[8] ts 135.
Later, the appellant's defence counsel showed the complainant medical notes in relation to the complainant's admission to and treatment at the hospital. The complainant then said he now remembered having told the two doctors at the hospital that he was attacked or jumped from behind by two men in a park.[9] The complainant explained that he made those statements to the two doctors because at that time he feared for his safety and his family's safety, and he did not intend to make a statement to the police.[10]
[9] ts 143 - 144.
[10] ts 143 - 144.
Next, the complainant agreed with the appellant's defence counsel that early the following morning (that is, early on 2 August 2016) the complainant was interviewed by police officers while he was still at the hospital.[11] The complainant agreed that he was interviewed by police officers after he had been seen by and spoken to the two doctors.[12]
[11] ts 144.
[12] ts 144.
The appellant's defence counsel put to the complainant that he told the police officers that he was 'drunk in a park and had been assaulted by unknown males'.[13] The complainant accepted that he had made that statement to the police officers. He explained that he had told the police officers '[a]t the beginning' that he had been assaulted in a park by unknown males because he 'feared for [his] family's safety'.[14]
[13] ts 144 - 145.
[14] ts 144 - 145.
The following exchange then occurred between the appellant's defence counsel and the complainant:
You told the two doctors and the two police officers that, because you were assaulted in the park, weren't you?---No, I was not.
Well, I put it to you, Mr Ward, that you left [the appellant's] house without fractured ribs but by the time you got home they were fractured?---That is totally incorrect.
Well, let me put another scenario to you. Because of your state of intoxication, you stumbled home and when crossing the park on your way home, you fell onto something hard and broke your ribs?---And that is totally incorrect.[15]
[15] ts 145.
After one further question and answer, the cross‑examination ended.

The prosecutor's application to the trial judge

Following the complainant's cross-examination, the prosecutor applied to the trial judge for leave to re‑examine the complainant on a statement the complainant had allegedly made to his wife to the effect that the assault had occurred at the appellant's property. That statement was allegedly made before the complainant's wife drove the complainant to the hospital. The prosecutor sought to lead the evidence, as a prior consistent statement, to rebut what the prosecutor asserted was the appellant's defence counsel's suggestion of recent fabrication.[16]
[16] ts 200 - 202.
The appellant's defence counsel objected on the ground that the statement was hearsay. Counsel denied that he intended to submit to the jury that the first complaint ever made by the complainant to anyone was that he was assaulted in the park.[17]
[17] ts 202 - 203.
Her Honour permitted the evidence to be given. After referring to Nominal Defendant v Clements[18] and 'I' v The State of Western Australia,[19] her Honour said:
I have to determine for myself - upon the conduct of the trial before me, whether this is a case for applying the rule of evidence of permitting evidence of a previous consistent statement.
In my view, although these words haven't been stated and [the appellant's defence counsel] has told me he's not going to say this, it's clear from the cross-examination, including the specific questions put to [the complainant] and the case theory, … that this injury was suffered at the park, in some other way, that [the complainant's] account of where this attack occurred is being attacked, itself, on the ground of a recent [invention or] reconstruction.
And in this way, [the appellant's defence counsel is] laying a foundation for impugning [the complainant's] account of the attack itself as a recently invented, devised or reconstructed story.
So in those circumstances, the rule permits the admission of evidence of an earlier consistent utterance to rebut a suggestion of recent fabrication and I'll be giving a direction to the jury that that relates to credit only and is not truth of the fact.[20]
[18] Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476, 479.
[19] 'I' v The State of Western Australia [2006] WASCA 204; (2006) 165 A Crim R 420 [29] - [33].
[20] ts 207 - 208.

The complainant's re-examination

The complainant said in re-examination that when he arrived at home, after leaving the appellant's property, his wife was at home and he told her, before leaving for the hospital, that he had been assaulted at the appellant's house.[21]
[21] ts 211.

The evidence of the complainant's wife

Later, the complainant's wife, Ms Healy, gave evidence as follows:[22]
I'm going to ask you this question and just listen to my question carefully. Did [the complainant] tell you where this had occurred?---I don't know. He just - he didn't say he was at [the appellant's] house when this happened. He just had said, 'They got me.' And then I said, 'What happened?', and he - and he said, 'PJ - - -.'
[22] ts 222.
The complainant's wife said in her evidence that the appellant, Peter Maynard, was known as 'PJ'.[23]
[23] ts 217.
The complainant's wife also gave evidence that, after the complainant came home and before they left for the hospital, the complainant repeatedly said 'we've got to go get the go-kart'.[24]
[24] ts 222.

The trial judge's directions to the jury

The trial judge directed the jury, during her summing up, that:
(a)the evidence of the out-of-court statements made by the complainant to his wife was adduced for the limited purpose of rebutting the suggestion that '[the complainant] might have fabricated or made up where he suffered his injuries and … to show the consistency of his assertions';[25] and
(b)whatever the jury might find that the complainant said to his wife was not to be used by the jury 'to prove the truth of the facts as stated by [the complainant]', but only in assessing the complainant's credibility.[26]
[25] ts 461.
[26] ts 461.
Her Honour had given similar directions to the jury upon completion of the complainant's evidence.[27]
[27] ts 213 - 216.

The ground of appeal

As we have mentioned, the appellant's sole ground of appeal alleges that the trial judge erred in allowing the State to lead hearsay evidence, during re-examination of the complainant, which unfairly bolstered his credibility.

The appellant's submissions

Counsel for the appellant submitted that there was no suggestion in cross-examination, either express or implied, of recent fabrication by the complainant. The trial judge therefore had no power to permit the prosecutor to adduce the evidence in question.
Counsel for the appellant argued that the appellant's defence counsel was cross-examining the complainant about prior inconsistent statements and was not seeking to attack the complainant's credit based on recent fabrication.

The State's submissions

Counsel for the State argued that, in putting to the complainant that the contents of the prior inconsistent statements were true, the appellant's defence counsel implied that the complainant's evidence at trial of being assaulted by the appellant had been fabricated or invented.
Counsel also argued that the prior consistent statement rationally tended to answer the attack on the complainant's credibility based upon the alleged recent fabrication or invention.
It was submitted that, in the circumstances, the evidence was properly admitted.

The merits of the ground of appeal

A witness may not, in general, be asked in evidence-in-chief whether he or she has previously made a statement consistent with the witness's evidence at trial. This rule is known as the rule against narrative or self-corroboration. The rule is, however, subject to some well‑established exceptions including, relevantly, that a prior consistent statement by a witness is admissible to rehabilitate his or her credit by rebutting a suggestion that the witness's evidence at the trial was devised or reconstructed after the events in question. This exception has been described as the doctrine of recent fabrication or invention. However, it appears that the adjective 'recent' is a misnomer and that the doctrine is concerned with any suggested fabrication or invention after the relevant events occurred but before the trial.[28]
[28] Wentworth v Rogers (No 10) (1987) 8 NSWLR 398, 401 - 402 (Kirby P, Hope and Glass JJA).
In Clements, Dixon CJ made these observations about the doctrine:
If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack. It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness's account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course. That is one reason why the trial judge's opinion has a peculiar importance (479 - 480).
Those observations were referred to with approval by McTiernan, Taylor and Menzies JJ in Transport and General Insurance Co Ltd v Edmondson.[29] Their Honours then elaborated:
What should be observed is that it is for the judge to determine for himself whether the credit of the witness has been impugned in the relevant sense and it is not to the point to enquire whether it would be open to the jury, or to some member of it, … to infer that a suggestion of recent invention had been made. If, according to the view of the learned trial judge such a suggestion is made it raises a subsidiary issue in the case and it is for the judge, having so decided for himself, to instruct the jury how they should deal with it; if in the view of the judge no such suggestion is made it is for him to instruct the jury appropriately. Secondly, when the suggestion has been made, it is for the judge to satisfy himself that the evidence sought to be adduced is such that it 'rationally tends to answer the attack' (29).
[29] Transport and General Insurance Co Ltd v Edmondson [1961] HCA 86; (1961) 106 CLR 23, 28 - 29.
Accordingly, it is for the trial judge to decide whether the witness's credibility has been attacked on the basis of alleged recent fabrication or invention and, if so, whether the alleged prior consistent statement rationally tends to answer the attack. The trial judge's evaluation of the attack on the witness's credit does not involve an assessment of whether it would be open to the jury to infer that a suggestion of recent fabrication or invention had been made.
In Clements, Windeyer J explained the kind of imputations and allegations that will permit evidence to be given of prior consistent statements:
The kind of imputations and allegations that - if sufficiently clearly made - will let in prior consistent statements are: First, that the witness's testimony is a recent fabrication, in the sense of being invented at or after a particular time. Evidence that he had said the same thing before that time becomes admissible. Secondly, that his testimony was the result of some motive, bias, influence or moral duress operating from some particular time and not before. Evidence that he had said the same thing before that time becomes admissible. The two situations can obviously overlap and in many of the cases in which the evidence was admitted elements of both operated (494).

Later, Windeyer J explained other aspects of the operation of the doctrine:
There must be an imputation, clearly made and not unequivocally disclaimed, that the witness is not speaking from his own recollection of events, but is recounting a story subsequently made up by him or for him. Furthermore, the statement which it is sought to use to dispel this imputation must be made in such circumstances that it logically does so. For if evidence be attacked as a recent fabrication, the attack is not repulsed by proving another statement, itself the product of pressure or of a motive to falsify. And, finally, if evidence of an earlier statement be received, the grounds for doing so should be made clear to the jury lest they should regard it as evidence of the facts stated (495).
In Edmondson, Windeyer J emphasised that it is 'what counsel directly or indirectly invites the jury to infer, not what without his invitation, express or covert, some juryman might infer, that makes the evidence of a prior consistent statement admissible' (32).
A general challenge to a witness's credit on the basis that he or she has given different versions of an event is not, as a rule, a basis for permitting evidence to be given of a prior statement by the witness which is consistent with the evidence he or she has given at trial. A prior consistent statement will not be admissible unless the general challenge to the witness's credit involves the express or implied suggestion that his or her evidence at trial is a recent fabrication or invention. See GJ Coles & Co Ltd v McDonald.[30]
[30] GJ Coles & Co Ltd v McDonald [1998] 2 VR 218, 223 (Winneke P, Phillips & Charles JJA).
In GJ Coles, Winneke P, Phillips and Charles JJA referred to the difficulties sometimes encountered in the application of the doctrine:
[T]he application of the principle may not always be so ready as its statement. As was demonstrated in Clements, the cross-examination might, in certain cases, be capable of wearing two aspects and it might be difficult then to say how far the cross-examiner had in truth raised the imputation that the witness's evidence was a recent invention. Nevertheless, that remains the touchstone for admissibility: evidence of prior consistent statement can be admitted only where the imputation of recent invention has been made, whether expressly or by implication, and it is a matter for the trial judge to decide if the imputation has been made before he admits evidence of the prior consistent statement (224).
Where a prior consistent statement is admitted under the doctrine of recent fabrication or invention, the statement is not evidence of the truth of its contents. The purpose of admitting the prior consistent statement is to rebut the express or implied suggestion that the witness belatedly fabricated or invented his or her account of the relevant events and to restore or bolster the witness's credibility. The prior consistent statement may be used by the jury in that manner in determining the weight to be given to the witness's evidence at trial. See R v Martin (No 2);[31] Leeks v XY.[32]
[31] R v Martin (No 2) (1997) 68 SASR 419, 433 - 434, 441 (Doyle CJ).
[32] Leeks v XY [2008] VSCA 21; (2008) 21 VR 118 [30] (Redlich JA; Buchanan & Vincent JJA agreeing).
In the present case, whether the trial judge erred as alleged in the ground of appeal is to be determined having regard to relevant aspects of the trial record at the time her Honour made her ruling.
The critical point is whether the trial judge was entitled to conclude that the appellant's defence counsel's cross‑examination of the complainant revealed an implicit imputation that the complainant was not giving an account from his own recollection of the events on the night in question, but was recounting a story subsequently made up by him after he had spoken to the doctors and the police officers at the hospital.
During the appellant's defence counsel's cross-examination of the complainant:
(a)Defence counsel put to the complainant in detail the appellant's version of events. That version was denied by the complainant.[33]
(b)Defence counsel extracted from the complainant an admission that late on the night of 1 August 2016 or early in the morning of 2 August 2016 at the hospital the complainant told two doctors that he was attacked or jumped from behind by two men in a park.[34]
(c)The complainant asserted that he gave that version of events to the doctors because he feared for his safety and for his family's safety.[35]
(d)Defence counsel also extracted from the complainant an admission that early in the morning of 2 August 2016 at the hospital the complainant told two police officers that he was drunk in a park and had been assaulted by unknown males.[36]
(e)The complainant asserted that he gave that version of events to the police officers because he feared for his family's safety.[37]
(f)After obtaining the admissions in relation to the doctors and the police officers, defence counsel put to the complainant the proposition that he left the appellant's house without fractured ribs, but by the time he got home they were fractured.[38] That was denied.
(g)Defence counsel also put to the complainant, as another scenario, the proposition that because the complainant had been intoxicated, he stumbled home and when crossing the park on his way home he fell onto something hard and broke his ribs.[39] That was denied.
[33] ts 115 - 120.
[34] ts 143.
[35] ts 143.
[36] ts 144 - 145.
[37] ts 144.
[38] ts 145.
[39] ts 145.
In our opinion, her Honour was entitled to conclude that there was an imputation implicit in those propositions, in the context of the cross‑examination as a whole, namely that:
(a)the complainant's sworn evidence implicating the appellant was not a true recollection of the events on the night in question; and
(b)the complainant was recounting a false story made up by him after he had spoken to the doctors and the police officers at the hospital.
The trial judge enjoyed an advantage which this court does not have in that her Honour saw and heard the complainant's cross‑examination. It was not suggested (and it could not reasonably have been suggested) that her Honour misused her advantage. In the circumstances, substantial weight should be given by this court to her Honour's opinion.
The prior consistent statement by the complainant to his wife was given shortly after the alleged events occurred at the appellant's premises and before the complainant was taken to hospital. The prior consistent statement, having regard to the time and circumstances in which it was made, tended rationally to answer the suggestion that the complainant's evidence at trial implicating the appellant was a recent fabrication or invention.
The appellant has not established that her Honour erred in permitting the prosecutor to adduce evidence of the prior consistent statement.
No complaint is made about the directions that the trial judge gave to the jury as to how they should deal with the prior consistent statement.
The ground of appeal is without merit.

Conclusion

An extension of time within which to appeal and leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FN
Research Associate to the Honourable Justice Buss
26 NOVEMBER 2019